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NCAA’s Statement on Student-Athlete Side Hustle Raises Questions

University of Central Florida Kicker Donald De La Haye has been deemed ineligible because of compensation he earned from his YouTube videos. UCF submitted a waiver on behalf of De La Haye requesting that he remain eligible while continuing to create videos. The waiver was granted, but with conditions. The NCAA’s conditions were that De La Haye could not monetize any videos that referenced his status as a student-athlete or depict his football skill or ability. De La Haye declined these conditions and was ruled ineligible.

On July 31, 2017, the NCAA issued a statement on the De La Haye decision that may have significant implications for the “student-athlete” debate:

Although Donald De La Haye has chosen not to compete any longer as a UCF student-athlete, he could have continued playing football for the university and earn money from non-athletic YouTube videos, based on a waiver the NCAA granted July 14

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Contrary to misperceptions, making a YouTube video – and even making money off of it – is not a violation of an NCAA rule. Further, years ago the membership gave NCAA staff the ability to review situations like these on a case-by-case basis, consistent with previous actions.

After the national office received the waiver request from UCF July 12, that process was used to confirm that De La Haye could monetize his video activity as long as it was not based on his athletics, reputation, prestige or ability.

Although these issues are evaluated on a case-by-case basis, the NCAA has effectively indicated that student-athletes may make money off of “non-athletic” YouTube videos. This creates more questions than answers. What constitutes a “non-athletic” YouTube video? When is it based on an athlete’s “reputation” or “prestige”? Is a higher-profile student-athlete more restricted than other student-athletes because of a built-in “reputation” or “prestige”?

Consider this hypothetical: If during his time at the University of Florida Tim Tebow created a YouTube page devoted to various topics, including his values, work ethic, and religious beliefs, would he be able to monetize it? At the time, he was the most famous student-athlete in the country and his YouTube page would be popular, in part, because of his “reputation” and “prestige.” What if the content has nothing to do with his role as a student-athlete? What if the content is tangentially related to his approach to athletics or his life as a student-athlete?

Notwithstanding its statement, the NCAA’s bylaws still prohibit accepting pay to promote commercial products or services, being paid “at a rate higher than the going rate” based on athletic ability, reputation, fame or “personal following,” See e.g., NCAA Bylaws 12.4, 12.5.

Under the bylaws, it would be difficult to quantify whether an athlete is paid “at a rate higher than the going rate” based on remuneration from a YouTube video.

Is it because of the athlete’s fame? Personal following? If it is, can the NCAA quantify the “higher rate”? Is the student-athlete entitled to the potential compensation he would receive if not for his fame? It is virtually impossible to make this determination. The NCAA will have to evaluate whether a video “deserves” the attention it receives. Does Donald De Lay Haye have almost 100,000 followers because he was the Kicker for UCF? Do these followers need to be surveyed? Even under the NCAA’s bylaws, it is a slippery slope to start making determinations as to whether student-athletes are monetarizing their status as college athletes under similar circumstances.

The question now is whether student-athletes will take advantage of the possibilities presented by the NCAA’s statement. They may be able to carefully market themselves to earn compensation while maintaining eligibility. Another question is how these principles will apply to other mediums in which student-athletes can be compensated for “non-athletic” endeavors.

Finally, what happens if a school does not seek a waiver as UCF did with De La Haye? And, what if they do not seek a waiver based on the NCAA’s statement in this situation? What is clear, however, is that the NCAA and colleges will continue to face these issues.

Jackson Lewis P.C.

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